Daniel Martin Galluccio v. Carolyn W. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

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DANIEL MARTIN GALLUCCIO,

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CASE NO. CV 17-0409 SS

Plaintiff,

12
v.

13

MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,

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Defendant.

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17
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I.

19

INTRODUCTION

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21

Daniel Martin Galluccio (“Plaintiff”) brings this action

22

seeking to overturn the decision of the Acting Commissioner of

23

Social

24

applications

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Supplemental Security Income (“SSI”).

Security
for

(the

“Commissioner”

Disability

or

Insurance

“Agency”)

denying

his

Benefits

(“DIB”)

and

The parties consented,

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1

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Nancy A. Berryhill, Acting Commissioner of Social Security, is
substituted for her predecessor Carolyn W. Colvin, whom Plaintiff named
in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d).

1

pursuant

to

28

U.S.C.

§

636(c),

to

the

jurisdiction

of

the

2

undersigned United States Magistrate Judge.

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For the reasons stated below, the Court AFFIRMS the Commissioner’s

4

decision.

(Dkt. Nos. 7, 12, 13).

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6

II.

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PROCEDURAL HISTORY

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9

On

January

15,

2013,

Plaintiff

filed

applications

for

10

Disability Insurance Benefits (“DIB”) and Supplemental Security

11

Income (“SSI”) pursuant to Titles II and XVI of the Social Security

12

Act alleging a disability onset date of January 31, 2013.

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201).

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and

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Plaintiff requested a hearing before an Administrative Law Judge

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(“ALJ”) (AR 120-22), which took place on June 18, 2015 (AR 29-52).

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The ALJ issued an adverse decision on July 16, 2015, finding that

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Plaintiff was not disabled because he could perform his past

19

relevant work.

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Council denied Plaintiff’s request for review.

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action followed on January 18, 2017.

on

(AR 194-

The Commissioner denied Plaintiff’s applications initially
reconsideration.

(AR 15-23).

(AR

97-101,

106-11).

Thereafter,

On December 5, 2016, the Appeals
(AR 1-8).

This

22
23

III.

24

FACTUAL BACKGROUND

25
26

Plaintiff was born on September 21, 1952. (AR 31, 194, 196).

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He was sixty-two years old when he appeared before the ALJ on June

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18, 2015.

(AR 15).

Plaintiff has a college degree.
2

(AR 33). He

1

is married and lives with his wife. (AR 266). Plaintiff previously

2

worked

3

disability

4

pressure, limited range of motion, scoliosis, arthritis, partial

5

deafness in left ear, and depression.

as

a

sales

due

representative.

to:

sleep

apnea,

(AR
asthma,

21-22).
obesity,

He

alleges

high

blood

(AR 266).

6
7

A.

Plaintiff’s Testimony

8
9

Plaintiff testified that he is unable to work because of

10

fatigue and an inability to focus.

(AR 39, 48).

Because of back

11

and hip pain, Plaintiff is unable to sit for more than thirty

12

minutes before needing to walk around.

13

walk for only four to five blocks before needing to rest.

14

44).

15

Because of his sleep apnea, he gets only four to five hours of

16

interrupted sleep.

17

in both feet, which he can alleviate by raising his legs.

(AR 35-36, 39-41).

Plaintiff also has difficulty bending and stooping.

(AR 37, 47).

He can
(AR 36,
(AR 36).

Plaintiff’s edema causes swelling
(AR 42).

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19

During a typical day, Plaintiff testified that he uses the

20

computer and reads.

(AR 39).

He can make his own breakfast and

21

is sometimes able to walk the dog.

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vision, Plaintiff is able to drive.

(AR 39).

Despite his monocular

(AR 38-39).

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24

B.

Plaintiff’s Statements

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26

Plaintiff completed an Adult Function Report on May 5, 2013.

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(AR 266-74).

He asserted that he is unable to work due to lethargy

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and weakness from his sleep apnea and asthma. (AR 266). He suffers
3

1

from continuous back pain and limited range of motion due to

2

scoliosis and arthritis.

3

walk the dog, take out the trash, and do laundry and dishes, but

4

has difficulty tying his shoes.

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for groceries, prescriptions and household goods and attends church

6

on a regular basis.

7

his physical impairments affect his ability to lift, squat, bend,

8

stand, reach, walk, sit, kneel, climb and hear, he is able to lift

9

forty to fifty pounds and can walk one-half mile before needing to

10

rest.

(AR 266).

He is able to make breakfast,

(AR 267-68).

(AR 269-70).

He is able to shop

While Plaintiff asserts that

(AR 271).

11
12

Plaintiff completed a Pain Questionnaire on May 6, 2013.

(AR

13

277-79).

He described suffering daily from dull to sharp pain in

14

his back that sometimes spreads to his shoulder and hip.

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The pain is somewhat relieved by Advil or Motrin.

16

Stretching and vibrating massages are also helpful in relieving

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the pain.

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but can do errands, such as the grocery shopping, and use public

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transportation without assistance.

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forty pounds, walk less than a mile, stand five to ten minutes at

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a time, and sit fifteen to twenty minutes at a time.

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Plaintiff also completed an Adult Asthma Questionnaire.

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82).

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emergency room visits or hospitalizations for his asthma.

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281).

(AR 278).

(AR 277).
(AR 277).

Plaintiff has difficulty picking things up

(AR 279).

He can lift up to

(AR 279).
(AR 280-

He asserted having monthly asthma attacks but denied and

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27
28
4

(AR

1

C.

Plaintiff’s Spouse’s Statement

2
3

On

May

5,

2013,

Idamary

Galluccio,

Plaintiff’s

spouse,

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completed a Third Party Function Report. (AR 257-65). She asserted

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that Plaintiff often dozes off and has trouble concentrating.

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257).

7

impairments affect his ability to lift, squat, bend, stand, walk,

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sit, kneel, hear, climb and concentrate.

He cannot sit for long periods.

(AR 261).

(AR

His physical

(AR 262).

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10

Plaintiff is able to dress, bathe, care for hair, shave,

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feed himself and use the toilet without assistance.

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also performs household chores, including preparing meals, doing

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laundry and dishes, walking the dog, shopping for groceries and

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taking out trash, on a regular basis.

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able to walk, drive and use public transportation on his own.

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260). He attends church and the senior clubhouse on a regular basis

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without assistance.

(AR 258-60).

(AR 258).

He

Plaintiff is
(AR

(AR 261).

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19

D.

Treatment History

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In March 2010, Plaintiff was diagnosed with severe sleep

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apnea, causing fatigue and depression.

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(A sleep study performed in February 2014 concluded that Plaintiff

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has “severe, non-positional obstructive sleep apnea.”).

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5

(AR 395); (see also AR 437)

In May

1

2010, Plaintiff reported increased energy and less fatigue while

2

using a CPAP machine.2

(AR 396).

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4

On May 11, 2011, Plaintiff complained of pain in his right

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hip, right knee, lower back and right shoulder.

(AR 393).

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examination, Michael A. Samuelson, M.D., found full active range

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of motion with no tenderness in Plaintiff’s right shoulder, full

8

range of motion with no tenderness or swelling in the right knee,

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and limited range of motion in the right hip.

(AR 393).

On

Dr.

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Samuelson also found decreased range of motion secondary to pain

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in the lumbar spine.

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was

13

extremities, and Plaintiff had full strength in his quadriceps,

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extensor hallucis longus,3 and gastro soleus.4 (AR 393). Plaintiff

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ambulated with a slow, guarded gait.

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right hip moderate arthritis, minimal arthritic changes in the

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lumbar spine and knees, and a normal right shoulder.

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Dr. Samuelson assessed bilateral knee and right hip osteoarthritis,

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lumbar degenerative disc disease and right shoulder impingement.

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21
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negative

with

(AR 393).
normal

Nevertheless, a straight leg raise
sensation

throughout

(AR 393).

the

lower

X-rays indicated

(AR 393).

22

“Continuous positive airway pressure (CPAP) therapy is a common
treatment for obstructive sleep apnea. A CPAP machine uses a hose and
mask or nosepiece to deliver constant and steady air pressure.”
<https://www.mayoclinic.org/diseases-conditions/sleep-apnea/indepth/cpap/art-20044164> (last visited Nov. 29, 2017).
3

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“The extensor hallucis longus muscle extends the foot’s big toe.”
<https://www.healthline.com/human-body-maps/extensor-hallucis-longusmuscle> (last visited Nov. 29, 2017).
4

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The gastro soleus is one of several muscles that flex the leg at the
knee “in addition to assisting propulsion and stabilisation [sic] during
the
actions
of
walking,
running
and
jumping.”
<http://www.musclesused.com/gastrocnemius-soleus-calf-muscles/>
(last
visited Nov. 29, 2017).

6

1

(AR 393).

He recommended that Plaintiff undergo a lap band

2

procedure to address Plaintiff’s obesity.

(AR 393).

3
4

On January 9, 2013, Plaintiff complained of back pain, leg

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swelling and insomnia.

(AR 312).

Jimmy Soliman, M.D., diagnosed

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sleep apnea, morbid obesity, scoliosis, degenerative joint disease,

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asthma and leg edema. (AR 312).

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Maxide5 dosage and recommended regular exercise, leg elevation and

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weight loss.

Dr. Soliman increased Plaintiff’s

(AR 313).

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On June 1, 2013, John Sedgh, M.D., reviewed the medical record

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and performed an internal medicine consultative examination on

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behalf of the Agency.

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sleep apnea is improved with the use of a CPAP machine, although

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he still experiences some sleepiness during the day.

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He uses an inhaler for his asthma but experiences shortness of

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breath after walking a couple blocks.

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complained of pain in his mid to lower back with radiation to his

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hip but denied needing an assistive device.

(AR 414-19).

Plaintiff reported that his

(AR 414).

(AR 414).

Plaintiff

(AR 414).

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21

On examination, Dr. Sedgh found normal range of motion in the

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cervical spine, shoulders, elbows, wrists, hips, knees and ankles.

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(AR 416-17).

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with flexion at 65/90 degrees, extension 15/30 degrees and lateral

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flexion at 20/30 degrees.

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5

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The range of motion in the lumbar spine was limited

(AR 416).

A straight-leg-raising test

Maxide, a common misspelling of Maxzide (hydrochlorothiazide), “is used
to treat fluid retention (edema) and high blood pressure (hypertension).”
<http://www.musclesused.com/gastrocnemius-soleus-calf-muscles/>
(last
visited Nov. 29, 2017).

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1

was negative.

(AR 416).

Plaintiff had full motor strength in all

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extremities but mild to moderate edema in his lower extremities.

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(AR 417). Dr. Sedgh’s clinical impression included hypertension,

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sleep apnea, asthma, scoliosis of the back and hearing loss.

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418).

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of work at the medium exertional level subject to environmental

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and

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crouching and stooping should be limited to frequent.

(AR

He opined that Plaintiff is capable of performing a range

postural

restrictions.

(AR

418).

Plaintiff’s

kneeling,
(AR 418).

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10

On July 23, 2013, V. Phillips, M.D., a nonexamining state

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agency consultant, reviewed the medical record and completed a

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Disability Determination Explanation statement.

(AR 53-64).

13

Phillips

of

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limited range of medium work.

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to frequent climbing, balancing, stooping, kneeling, crouching and

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crawling and should avoid concentrated exposure to extreme cold

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and extreme heat.

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M.D., another nonexamining state agency consultant, affirmed Dr.

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Phillips’s findings.

concluded

that

Plaintiff

(AR 62).

is

capable

(AR 61-62).

Dr.

performing

a

Plaintiff is limited

On December 2, 2013, B. Vaghaiwalla,

(AR 79-86).

20
21

Farhad

Contractor,

M.D.

performed

X-rays

of

Plaintiff’s

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thoracic and lumbar spine on May 2, 2014.

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rays revealed degenerative and arthritic changes at L5-S1 and

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degenerative changes at T12-L1, with no nerve impact evident.

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457-58).

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degenerative disc disease, lumbar spondylosis, facet arthritis at

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L5-S1 and rotatory scoliosis due to muscle spasm.

Dr.

Contractor’s

clinical

28
8

(AR 457-58).

impression

The X-

(AR

included

(AR 458).

1

Primary care records during May and June 2014 indicated no

2

significant functional limitations and conservative treatment. (AR

3

440-52).

4

joint pain, joint swelling, muscle pain, muscular weakness, limited

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range of motion and muscle cramps.

On May 30 and June 12, 2014, Plaintiff denied fatigue,

(AR 445, 447).

6
7

On December 17, 2014, Gerald W. Cara, M.D., conducted an

8

orthopedic examination.

(AR 460).

Plaintiff complained of lumbar

9

spine pain and stated that he has sleep apnea.

(AR 460).

On

10

examination, Dr. Cara found Plaintiff to be morbidly obese, with

11

marked restriction of motion in the lumbar spine, pitting edema in

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the lower extremities and areflexic deep tendon reflexes.

13

460).

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with an MRI study.

15

Kincaid, M.D., performed an MRI of Plaintiff’s lumbar spine.

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461-62).

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moderate degenerative changes at L4-S1, with 2-3mm disc protrusions

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causing mild canal stenosis and minimal foraminal narrowing.

19

462).

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Plaintiff be referred to a spine surgeon (AR 459), but the record

21

documents no further treatment.

(AR

Dr. Cara recommended that Plaintiff be further evaluated
(AR 460).

On January 15, 2015, Patricia
(AR

Dr. Kincaid’s clinical impression included mild-to-

(AR

On the basis of the MRI study, Dr. Cara recommended that

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IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

25
26

To

qualify

for

disability

benefits,

a

claimant

must

27

demonstrate a medically determinable physical or mental impairment

28

that prevents the claimant from engaging in substantial gainful
9

1

activity and that is expected to result in death or to last for a

2

continuous period of at least twelve months.

3

157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).

4

The impairment must render the claimant incapable of performing

5

work

6

employment that exists in the national economy.

7

180

8

§ 423(d)(2)(A)).

previously

F.3d

performed

1094,

1098

or

(9th

any

Cir.

other

1999)

Reddick v. Chater,

substantial

gainful

Tackett v. Apfel,

(citing

42

U.S.C.

9
10

To decide if a claimant is entitled to benefits, an ALJ

11

conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920.

12

The

steps are:

13
14

(1)

Is the claimant presently engaged in substantial gainful

15

activity?

16

not, proceed to step two.

17

(2)

Is

the

If so, the claimant is found not disabled.

claimant’s

impairment

18

claimant is found not disabled.

19

severe?

If

not,

If

the

three.

20

(3)

If so, proceed to step

Does the claimant’s impairment meet or equal one of the

21

specific impairments described in 20 C.F.R. Part 404,

22

Subpart P, Appendix 1?

23

disabled.

24

(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work? If

25

so, the claimant is found not disabled.

26

to step five.

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28
10

If not, proceed

1

(5)

Is the claimant able to do any other work?

2

claimant is found disabled.

3

If not, the

If so, the claimant is found

not disabled.

4
5

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

6

262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-

7

(g)(1), 416.920(b)-(g)(1).

8
9

The claimant has the burden of proof at steps one through four

10

and

the

11

Bustamante, 262 F.3d at 953-54.

12

affirmative duty to assist the claimant in developing the record

13

at every step of the inquiry.

14

claimant meets his or her burden of establishing an inability to

15

perform past work, the Commissioner must show that the claimant

16

can perform some other work that exists in “significant numbers”

17

in

18

residual functional capacity (“RFC”), age, education, and work

19

experience.

20

721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

21

may do so by the testimony of a VE or by reference to the Medical-

22

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

23

Appendix 2 (commonly known as “the grids”).

24

240 F.3d 1157, 1162 (9th Cir. 2001).

25

exertional (strength-related) and non-exertional limitations, the

26

Grids are inapplicable and the ALJ must take the testimony of a

27

vocational expert (“VE”).

the

Commissioner

national

has

economy,

the

burden

of

at

step

five.

Additionally, the ALJ has an

Id. at 954.

taking

proof

into

If, at step four, the

account

the

claimant’s

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at
The Commissioner

Osenbrock v. Apfel,

When a claimant has both

Moore v. Apfel, 216 F.3d 864, 869 (9th

28
11

1

Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

2

1988)).

3
4

V.

5

THE ALJ’S DECISION

6
7

The ALJ employed the five-step sequential evaluation process

8

and concluded that Plaintiff was not disabled within the meaning

9

of the Social Security Act.
Plaintiff

met

the

(AR 22).
insured

At step one, the ALJ found

10

that

status

requirements

through

11

September 30, 2017, and had not engaged in substantial gainful

12

activity since January 31, 2010, the alleged disability onset date.

13

(AR 16).

14

spondylosis, herniated discs at L4-5 and L5-S1 with stenosis,

15

morbid obesity, obstructive sleep apnea, hypertension, asthma and

16

loss of vision in the right eye are severe impairments.

17

At step three, the ALJ determined that Plaintiff does not have an

18

impairment or combination of impairments that meet or medically

19

equal the severity of any of the listings enumerated in the

20

regulations. (AR 19).

At step two, the ALJ found that Plaintiff’s lumbar

(AR 18).

21
22

The ALJ then assessed Plaintiff’s RFC and concluded that he

23

can perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and

24

416.967(b),6 except:

25
26
27
28

6

“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg

12

1

[Plaintiff] can stand and/or walk for six hours, and sit

2

for six hours, in an eight-hour workday with normal

3

breaks;

4

cannot climb ladders, ropes or scaffolds; cannot crawl;

5

and should have no exposure to dangerous machinery,

6

unprotected heights, dusts, fumes, or extremes of heat

7

or cold.

8

performance of jobs requiring only monocular vision.

can

perform

occasional

postural

maneuvers;

[Plaintiff] is additionally limited to the

9
10

(AR 19).

At step four, the ALJ found that Plaintiff was capable

11

of performing his past relevant work as a sales representative,

12

which does not require the performance of work-related activities

13

precluded by Plaintiff’s RFC.

14

that Plaintiff was not under a disability as defined by the Social

15

Security Act from January 31, 2010, through the date of the ALJ’s

16

decision.

(AR 21).

Accordingly, the ALJ found

(AR 22).

17
18

VI.

19

STANDARD OF REVIEW

20
21

Under 42 U.S.C. § 405(g), a district court may review the

22

Commissioner’s decision to deny benefits.

“[The] court may set

23

aside the Commissioner’s denial of benefits when the ALJ’s findings

24

are based on legal error or are not supported by substantial

25

evidence in the record as a whole.”

Aukland v. Massanari, 257 F.3d

26
27
28

controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these
activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

13

1

1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see

2

also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing

3

Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

4
5

“Substantial evidence is more than a scintilla, but less than

6

a preponderance.”

Reddick, 157 F.3d at 720 (citing Jamerson v.

7

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

8

evidence which a reasonable person might accept as adequate to

9

support a conclusion.”

(Id.).

It is “relevant

To determine whether substantial

10

evidence supports a finding, the court must “‘consider the record

11

as a whole, weighing both evidence that supports and evidence that

12

detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d

13

at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

14

1993)).

15

or reversing that conclusion, the court may not substitute its

16

judgment for that of the Commissioner.

17

21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

18

1457 (9th Cir. 1995)).

If the evidence can reasonably support either affirming

Reddick, 157 F.3d at 720-

19
20

VII.

21

DISCUSSION

22
23

Plaintiff contends that the ALJ erred for the following three

24

reasons: (1) the ALJ erred in rejecting Plaintiff’s testimony

25

regarding his subjective symptoms and functional limitations; (2)

26

the ALJ erred in the determination of Plaintiff’s RFC; and (3) the

27

ALJ erred in relying on the VE’s response to the ALJ’s incomplete

28

hypothetical question.

(Dkt. No. 21 at 2-14).
14

1
2

A.

The ALJ’s Reasons for Discrediting Plaintiff’s Subjective
Symptom Testimony Were Specific, Clear and Convincing

3
4

Plaintiff asserted that he is unable to work due to lethargy

5

and weakness from his sleep apnea and asthma. (AR 266). He suffers

6

from continuous back pain and has limited range of motion due to

7

his scoliosis and arthritis.

8

that because of his back and hip pain, he is unable to sit for more

9

than thirty minutes before needing to move around.

(AR 266, 277).

Plaintiff testified

(AR 35-36, 39-

10

41; see id. 279).

He can walk for only four to five blocks before

11

needing to rest.

(AR 36, 44; see id. 271).

12

bending, stooping and picking things up.

13

ALJ found Plaintiff’s statements “not entirely credible insofar as

14

they are not corroborated by the medical evidence of record and

15

[Plaintiff’s] reported and demonstrated activity level.”

He has difficulty

(AR 36, 271, 279).

The

(AR 20).

16
17

1.

Standards

18
19

When assessing a claimant’s credibility regarding subjective

20

pain or intensity of symptoms, the ALJ must engage in a two-step

21

analysis.

22

First, the ALJ must determine if there is medical evidence of an

23

impairment that could reasonably produce the symptoms alleged.

24

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).

25

analysis, the claimant is not required to show that her impairment

26

could reasonably be expected to cause the severity of the symptom

27

she has alleged; she need only show that it could reasonably have

28

caused some degree of the symptom.”

Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017).

15

“In this

Id. (emphasis in original)

1

(citation omitted).

“Nor must a claimant produce objective medical

2

evidence of the pain or fatigue itself, or the severity thereof.”

3

Id. (citation omitted).

4
5

If the claimant satisfies this first step, and there is no

6

evidence of malingering, the ALJ must provide specific, clear and

7

convincing reasons for rejecting the claimant’s testimony about

8

the symptom severity.

9

see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the

10

claimant’s testimony regarding the severity of her symptoms only

11

if he makes specific findings stating clear and convincing reasons

12

for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883

13

(9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering

14

based on affirmative evidence thereof, he or she may only find an

15

applicant

16

credibility and stating clear and convincing reasons for each.”).

17

“This is not an easy requirement to meet: The clear and convincing

18

standard is the most demanding required in Social Security cases.”

19

Garrison, 759 F.3d at 1015 (citation omitted).

not

Trevizo, 874 F.3d at 678 (citation omitted);

credible

by

making

specific

findings

as

to

20
21
22

In discrediting the claimant’s subjective symptom testimony,
the ALJ may consider the following:

23
24

(1) ordinary techniques of credibility evaluation, such

25

as

26

inconsistent

27

other testimony by the claimant that appears less than

28

candid;

the

claimant’s

(2)

reputation

statements

concerning

unexplained

or
16

for
the

lying,

prior

symptoms,

inadequately

and

explained

1

failure to seek treatment or to follow a prescribed

2

course

3

activities.

of

treatment;

and

(3)

the

claimant’s

daily

4
5

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation

6

omitted).

7

conduct, or internal contradictions in the claimant’s testimony,

8

also may be relevant.

9

Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

Inconsistencies between a claimant’s testimony and

Burrell v. Colvin, 775 F.3d 1133, 1137 (9th

10

1997).

In addition, the ALJ may consider the observations of

11

treating and examining physicians regarding, among other matters,

12

the functional restrictions caused by the claimant’s symptoms.

13

Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However,

14

it is improper for an ALJ to reject subjective testimony based

15

“solely” on its inconsistencies with the objective medical evidence

16

presented.

17

(9th Cir. 2009) (citation omitted).

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227

18
19

Further, the ALJ must make a credibility determination with

20

findings that are “sufficiently specific to permit the court to

21

conclude that the ALJ did not arbitrarily discredit claimant’s

22

testimony.”

23

2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487,

24

493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not

25

credible must be sufficiently specific to allow a reviewing court

26

to conclude the adjudicator rejected the claimant’s testimony on

27

permissible grounds and did not arbitrarily discredit a claimant’s

28

testimony regarding pain.”) (citation omitted).

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.

17

Although an ALJ’s

1

interpretation of a claimant’s testimony may not be the only

2

reasonable one, if it is supported by substantial evidence, “it is

3

not [the court’s] role to second-guess it.”

4

261 F.3d 853, 857 (9th Cir. 2001).

Rollins v. Massanari,

5
6

2.

7

Factors

Supporting

The

ALJ’s

Adverse

Credibility

Determination

8
9

The ALJ provided two specific, clear and convincing reasons

10

to find Plaintiff’s complaints of difficulties with maneuvering

11

and exertion not entirely credible.

12

are sufficient to support the Commissioner’s decision.

(AR 20-21).

These reasons

13
14

a.

15

Reported

Symptoms

Not

Corroborated

By

Medical

Record

16
17

The ALJ found Plaintiff not entirely credible because his

18

reported symptoms were not corroborated by the medical evidence of

19

record.

20

sufficient specificity that contradicted Plaintiff’s allegations

21

of significant difficulties with maneuvering and exertion. (AR 20-

22

21).

(AR 20).

The ALJ identified multiple medical records with

23
24

First, the ALJ found that Plaintiff’s medical care was limited

25

and intermittent.

(AR 20).

An “unexplained, or inadequately

26

explained, failure to seek treatment may be the basis for an adverse

27

credibility finding.”

Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.

28
18

1

2007) (citation omitted); Social Security Ruling (“SSR”) 16-3p,7

2

at *9 (S.S.A. Oct. 25, 2017) (“if the frequency or extent of the

3

treatment sought by an individual is not comparable with the degree

4

of the individual’s subjective complaints, . . . [the Agency] may

5

find the alleged intensity and persistence of an individual’s

6

symptoms are inconsistent with the overall evidence of record”).

7

While Plaintiff alleges an onset of disability as of January 1,

8

2010, the medical record is sparse prior to May 2011.

9

generally id. 309-462).
Plaintiff’s

(AR 20; see

Moreover, the ALJ noted significant gaps

10

in

medical

record.

(AR

20-21)

(no

significant

11

treatment records between May 2011 and January 2013, between June

12

2014 and January 2015, and after January 2015).

13

identifies a single October 2012 medical record (Dkt. No. 21 at

14

4), this record appears to be no more than a routine physical

15

examination.

While Plaintiff

(AR 309-11).

16
17

Second, the ALJ found inconsistencies between Plaintiff’s

18

testimony

19

“Contradiction with the medical record is a sufficient basis for

20

rejecting the claimant’s subjective testimony.”

21

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see

22

SSR 16-3p, at *5 (“objective medical evidence is a useful indicator

23

to

24

persistence of symptoms, including the effects those symptoms may

help

and

make

the

objective

reasonable

medical

conclusions

evidence.

about

the

(AR

20-21).

Carmickle v.

intensity

and

25
7

26
27
28

Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but
they are binding on ALJs nonetheless.”
Bray, 554 F.3d at 1224. They
“reflect the official interpretation of the [Agency] and are entitled to
some deference as long as they are consistent with the Social Security
Act and regulations.” Id. (citation omitted).

19

1

have on the ability to perform work-related activities”).

2

May 2011 orthopedic examination found decreased range of motion in

3

Plaintiff’s lumbar spine and right hip, he had full range of motion

4

in his right shoulder and right knee.

5

Further, a straight-leg-raising test was negative and Plaintiff

6

had full strength in his lower extremities.

7

2013 examination, Plaintiff was in no acute distress, and he

8

demonstrated

9

(citing id. 416-18).

adequate

gait

and

While a

(AR 20) (citing id. 393).

maneuvering

(AR 393).

ability.

In a June

(AR

20)

While Plaintiff had reduced range of motion

10

in his lumbar spine, he had full range of motion in his cervical

11

spine, shoulders, elbows, wrists, hips, knees and ankles and a

12

straight-leg-raising test was negative.

13

primary care records during May and June 2014 indicated that

14

Plaintiff had no significant functional limitations.

15

(citing id. 440-52).

16

fatigue, joint pain or swelling, muscle pain, cramps or weakness,

17

and limited range of motion.

(AR 416-17).

Moreover,

(AR 21)

Indeed, during those visits, Plaintiff denied

(AR 445, 447).

18
19

Plaintiff contends that the ALJ “cited to isolated pieces of

20

evidence, . . . yet failed to consider that the objective medical

21

evidence of record supported Plaintiff’s testimony regarding his

22

subjective symptoms and functional limitations.”

23

7-8).

24

reiterates

25

obstructive sleep apnea, degenerative disc disease, severe lumbar

26

spondylosis, stenosis and edema.

27

edema, the ALJ found all of these impairments to be severe.

28

18).

(Dkt. No. 21 at

However, in support of this assertion, Plaintiff merely
that

he

was

diagnosed

with

morbid

obesity,

(Id. at 7, 8-9).

severe

Other than
(AR

Plaintiff fails to identify any objective evidence, including
20

1

physical examination findings or diagnostic tests, that contradicts

2

the evidence cited by the ALJ.

3
4

Plaintiff also contends that it was “improper for the ALJ to

5

discredit

Plaintiff’s

testimony

based

merely

on

a

6

corroborating objective evidence.”

7

ALJ “may not reject a claimant’s subjective complaints based solely

8

on a lack of objective medical evidence to fully corroborate the

9

claimant’s allegations,”

(Dkt. No. 21 at 8).

lack

of

While the

Bray, 554 F.3d at 1227, the ALJ “must

10

consider whether an individual’s statements about the intensity,

11

persistence, and limiting effects of his or her symptoms are

12

consistent

13

record,” SSR 16-3p, at *5 (emphasis added).

14

reject

15

evidence to support Plaintiff’s allegations. Instead, the ALJ

16

discredited Plaintiff’s statements because they are inconsistent

17

with the medical signs and laboratory findings in the record.

with

the

Plaintiff’s

medical

subjective

signs

and

symptoms

laboratory

findings

of

Here, the ALJ did not

because

of

a

lack

of

18
19

Finally, the ALJ noted Plaintiff’s conservative treatment

20

history.

(AR 20-21).

The Ninth Circuit has concluded that

21

“evidence of conservative treatment is sufficient to discount a

22

claimant’s testimony regarding severity of an impairment.”

23

v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted);

24

see Tommasetti, 553 F.3d at 1039-40 (ALJ may properly infer that

25

claimant’s pain “was not as all-disabling as he reported in light

26

of the fact that he did not seek an aggressive treatment program”

27

and “responded favorably to conservative treatment”); Meanel v.

28

Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999), as amended (June 22,
21

Parra

1

1999) (“Meanel’s claim that she experienced pain approaching the

2

highest

3

conservative

4

Plaintiff’s orthopedic surgeon recommended only that Plaintiff

5

consider lap band surgery.

6

2013, Plaintiff’s primary care doctor merely increased Plaintiff’s

7

edema medication and recommended regular exercise and weight loss.

8

(AR 20) (citing id. 313).

9

2015 recommended that Plaintiff be evaluated by a spine surgeon,

level

imaginable
treatment’

was
that

inconsistent
she

with

received.”).

the
In

‘minimal,
May

(AR 20) (citing id. 393).

2011,

In June

While an orthopedic surgeon in January

10

the record reflects no further treatment.

(AR 21) (citing id.

11

459).

12

by an unexplained, or inadequately explained, failure to follow a

13

prescribed

14

(citation and alterations omitted).

“A claimant’s subjective symptom testimony may be undermined

course

of

treatment.”

Trevizo,

871

F.3d

at

679

15
16

The ALJ properly could find, on the basis of Plaintiff’s

17

inconsistent and conservative treatment history, that Plaintiff’s

18

testimony

19

maneuvering and exertion were not entirely credible.

and

statements

regarding

his

difficulties

with

20
21

b.

22

Reported Symptoms Inconsistent With Demonstrated
Activity Level

23
24

The ALJ also found Plaintiff not entirely credible because

25

his reported symptoms were inconsistent with his acknowledged daily

26

activities.

27

daily

28

because impairments that would unquestionably preclude work and

“ALJs must be especially cautious in concluding that

activities

are

inconsistent

22

with

testimony

about

pain,

1

all

the

pressures

of

a

workplace

environment

will

often

be

2

consistent with doing more than merely resting in bed all day.”

3

Garrison, 759 F.3d at 1016.

4

consider the claimant’s daily activities in weighing credibility.

5

Tommasetti, 533 F.3d at 1039.

6

is inconsistent with the claimant’s asserted limitations, it has a

7

bearing on credibility.

Nevertheless, an ALJ properly may

If a claimant’s level of activity

Garrison, 759 F.3d at 1016.

8
9

Here, the ALJ determined that despite Plaintiff’s alleged

10

disabling

difficulties

11

acknowledged engaging in daily activities, including self-care,

12

housework, errands and social and leisure activities that were

13

inconsistent with his alleged disabilities.

14

testified that he walks his dog and is able to drive.

15

He is able to make breakfast, take out the trash, do laundry and

16

dishes.

17

household goods, attends church on a regular basis and is able to

18

use public transportation.

19

between Plaintiff’s alleged disabilities and his daily activities

20

supports the ALJ’s determination that Plaintiff is not entirely

21

credible.

(AR 267-68).

with

maneuvering

and

exertion,

(AR 20).

he

Plaintiff
(AR 38-39).

He shops for groceries, prescriptions and

(AR 269-70, 279).

The discrepancy

22
23

Plaintiff contends that the ALJ “did not elaborate on which

24

specific activities conflicted with which part of Plaintiff’s

25

testimony.”

26

that engaging in daily activities such as self-care, housework,

27

walking, driving, using public transportation, shopping and social

28

and leisure activities, to which Plaintiff acknowledged in his May

(Dkt. No. 21 at 10).

23

To the contrary, the ALJ found

1

2013

Function

2

including difficulties with maneuvering and exertion, that he

3

claimed

4

testified.

5

for this Court to conclude that the ALJ rejected Plaintiff’s

6

testimony “on permissible grounds.”

in

Report,

his

May

undermined

2013

(AR 20).

Pain

his

disabling

Questionnaire

and

limitations,

to

which

he

The ALJ’s finding is “sufficiently specific”

Brown-Hunter, 806 F.3d at 493.

7
8

Plaintiff also contends that the ALJ did not explain “how

9

Plaintiff’s activities might be transferable to a work setting.”

10

(Dkt. No. 21 at 10).

11

that

12

benefits, and many home activities may not be easily transferable

13

to

14

periodically or take medication.”

15

The

16

inconsistent

17

limitations, and was not required to offer any further discussion

18

of the daily activities.

19

consider

20

including . . .

21

symptoms”) (citation omitted).

claimants

a

work

ALJ

be

“The Social Security Act does not require

utterly

environment

properly

a

where

found

with

range
prior

incapacitated

that

it

might

of

be

be

eligible

impossible

to

for

rest

Smolen, 80 F.3d at 1284 n.7.

Plaintiff's

Plaintiff’s

to

daily

activities

allegations

of

are

disabling

See Ghanim, 763 F.3d at 1163 (“ALJ may
factors

inconsistent

in

assessing

statements

credibility,

concerning

the

22
23

c.

24

The ALJ Provided A Germane Explanation For Rejecting
Plaintiff’s Spouse’s Statement

25
26

Plaintiff contends that the ALJ improperly rejected the May

27

2013 statement of his wife, Idamary Galluccio.

28

11).

(Dkt. No. 21 at

“A germane explanation is required to reject lay witness
24

1

testimony.”

2

2017). Plaintiff’s spouse’s statement largely parroted Plaintiff’s

3

allegations

4

limitations.

5

Plaintiff acknowledges that his wife merely “corroborated” his

6

allegations.

7

Galluccio’s statement, giving it “[l]imited weight . . . inasmuch

8

as it essentially reiterates [Plaintiff’s] subjective allegations,

9

which

are

Leon v. Berryhill, 874 F.3d 1130, 1134 (9th Cir.

regarding

not

his

subjective

symptoms

and

functional

(Compare AR 257-65, with id. 266-74).

(Dkt. No. 21 at 11).

fully

corroborated

The ALJ reviewed Idamary

by

the

medical

evidence

as

10

articulated herein.”

11

rejected Idamary Galluccio’s statement.

12

(“if an ALJ provided clear and convincing reasons for rejecting a

13

claimant’s subjective complaints, and lay testimony was similar to

14

such complaints, it follows that the ALJ also gave germane reasons

15

for rejecting the lay witness testimony”); Valentine v. Comm’r Soc.

16

Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In light of our

17

conclusion that the ALJ provided clear and convincing reasons for

18

rejecting Valentine’s own subjective complaints, and because Ms.

19

Valentine’s testimony was similar to such complaints, it follows

20

that

21

testimony.”).

the

ALJ

also

(AR 21).

Indeed,

gave

Accordingly, the ALJ properly

germane

Leon, 874 F.3d at 1134

reasons

for

rejecting

her

22
23

In

sum,

the

ALJ

offered

clear

and

convincing

reasons,

24

supported by substantial evidence in the record, for his adverse

25

credibility findings.

Accordingly, because substantial evidence

26
27
28
25

1

supports the ALJ’s assessment of Plaintiff’s credibility, no remand

2

is required.8

3
4

B.

The ALJ’s RFC Assessment Is Supported By Substantial Evidence

5
6

Plaintiff contends that the ALJ’s RFC assessment failed to

7

take into account Plaintiff’s lumbar spondylosis and herniated

8

discs with stenosis, sleep apnea and morbid obesity.

9

at 12-13; see also id. at 8-9).

(Dkt. No. 21

The Court disagrees.

10
11

“A claimant’s residual functional capacity is what he can

12

still do despite his physical, mental, nonexertional, and other

13

limitations.”

14

Cir. 1989) (citing 20 C.F.R. § 404.1545).

15

requires the ALJ to consider a claimant’s impairments and any

16

related symptoms that may “cause physical and mental limitations

17

that affect what [he] can do in a work setting.”

18

§§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC,

19

the

20

functional capacity assessments made by consultative examiners,

21

State

ALJ

Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th

considers

Agency

all

physicians

relevant

and

evidence,

medical

An RFC assessment

20 C.F.R.

including

experts.

20

residual

C.F.R.

22
23
8

24
25
26
27
28

In his third argument, Plaintiff contends that the ALJ improperly relied
on the VE’s response to the ALJ’s hypothetical question that did not
include the functional limitations testified to by Plaintiff. (Dkt. No.
21 at 13-14). However, because the ALJ properly discredited Plaintiff’s
testimony and statements, he did not need to include them in his
hypothetical question. See Osenbrock, 240 F.3d at 1165 (“It is . . .
proper for an ALJ to limit a hypothetical to those impairments that are
supported by substantial evidence in the record.”); accord Britton v.
Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015).

26

1

§§ 404.1545(a)(3),

2

416.945(a)(3);

see

also

id.

§§ 404.1513(c),

416.913(c).

3
4

The ALJ found that Plaintiff’s lumbar spondylosis, herniated

5

discs with stenosis, morbid obesity and sleep apnea were all severe

6

impairments.

7

the ALJ took into account Plaintiff’s obesity, his limited range

8

of

9

demonstrated degenerative changes at T12-L1 and L4-S1 with 2-3mm

motion

(AR 18).

in

his

Moreover, in assessing Plaintiff’s RFC,

lumbar

spine

the

x-rays

and

MRI

that

10

disc protrusions.

11

2013

12

maneuvering abilities.

13

Plaintiff

14

Plaintiff to light work in deference to Plaintiff’s subjective

15

symptoms that were not inconsistent with the objective evidence.

16

(AR 20-21).

and

May

would

(AR 20-21).

and

and

June

be

Nevertheless, examinations in June

2014

demonstrated

(AR 20-21).

capable

of

adequate

gait

and

While Dr. Sedgh opined that

medium

work,

the

ALJ

limited

17
18

Plaintiff appears to confuse conditions with disabilities.

19

For example, a “person can be depressed, anxious, and obese yet

20

still perform full-time work.”

21

868 (7th Cir. 2005).

Gentle v. Barnhart, 430 F.3d 865,

As the Seventh Circuit explained:

22
23

Conditions must not be confused with disabilities.

The

24

social

not

25

concerned with health as such, but rather with ability

26

to engage in full-time gainful employment.

27

is obscured by the tendency in some cases to describe

28

obesity as an impairment, limitation, or disability.

security

disability

27

benefits

program

is

This point

It

1

is none of these things from the standpoint of the

2

disability program.

3

but once its causal efficacy is determined, it drops out

4

of the picture.

5

disability benefits is so obese as to be unable to bend,

6

the

7

claimant’s capacity for work.

issue

is

It can be the cause of a disability,

If the claimant for social security

the

effect

of

that

inability

on

the

8
9

Id. (citation omitted) (emphasis in original); accord Cody v.

10

Colvin, No. 16 CV 5664, 2017 WL 218802, at *3 (W.D. Wash. Jan. 19,

11

2017).

12
13

Other than his own subjective allegations, which the ALJ

14

properly discredited, Plaintiff does not demonstrate how his lumbar

15

spondylosis, herniated discs with stenosis, morbid obesity and

16

sleep apnea limits his ability to work.

17

276 F.3d 453, 459 (9th Cir. 2001) (“It was [claimant’s] duty to

18

prove that she was disabled.”) (citing 20 C.F.R. § 404.1512(a));

19

see also Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990)

20

(“The burden of establishing disability is . . . on the claimant,

21

who must prove that she is unable to return to her former type of

22

work.”).

23

impairments, which the ALJ found to be severe, limit his functional

24

capacity more than the limitations found by the ALJ.

25

the ALJ’s RFC assessment is supported by substantial evidence.

See Mayes v. Massanari,

He cites to no medical evidence indicating that these

Accordingly,

26
27
28

Plaintiff

contends

that

the

ALJ

failed

to

consider

“the

symptoms associated with Plaintiff’s obesity and its limiting
28

1

effects, individually and in combination with his other medical

2

impairments, on his ability to perform physical and mental work-

3

related activities, as required by SSR 02-1p.”

4

9).

To the contrary, the ALJ found that Plaintiff’s morbid obesity

5

was

a

6

including its impact on his ability to ambulate, in assessing the

7

RFC.

8

evidence of any additional functional limitations arising from his

9

obesity that the ALJ overlooked.

severe

impairment

(AR 18, 21).

and

considered

(Dkt. No. 21 at

Plaintiff’s

weight,

Plaintiff has failed to identify any probative

Burch v. Barnhart, 400 F.3d 676,

10

684 (9th Cir. 2005) (“Burch has not set forth, and there is no

11

evidence in the record, of any functional limitations as a result

12

of her obesity that the ALJ failed to consider.”).

13
14

VIII.

15

CONCLUSION

16
17

Consistent with the foregoing, IT IS ORDERED that Judgment be

18

entered AFFIRMING the decision of the Commissioner.

The Clerk of

19

the Court shall serve copies of this Order and the Judgment on

20

counsel for both parties.

21
22

DATED:

December 1, 2017

23
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
29